Day Without Immigrants Protest planned for February 16

February 15, 2017

Immigration Protest Planned

Dear CRA Members:

We have been informed by the National Restaurant Association as well as several of our members in Colorado that there will be potential employee walkouts as part of the “Day Without Immigrants” protest on Thursday, February 16. We are told that these protests are intended to highlight immigration issues and the proposed policy stances of the Trump Administration. Organizers are encouraging workers not to show up for work or to walk out of their jobs on Thursday.

First, we want you to be aware of this, and second, we want you to be prepared in advance. Obviously, as the business owner, you need to do what you think is most appropriate for your business.

Some thoughts to consider include:

Do you know if any of your staff is planning to protest? If so, can you find backup?

You may want to consider offering a less labor-intensive menu for the day.

Your employees have a legal right to protest. However, you are not obligated to pay non-exempt employees who are not working. You do need to be careful about exempt employees (reducing pay for the hours not worked could result in a loss of their exempt status). However, we don’t advise that you discipline employees on top of that. You don’t want to do or say anything that could be interpreted as a threat.

To cite one of our Labor Attorney Partners, Fisher & Phillips, in an article they wrote about protests in November:

What Do You Need To Know?In advance of widespread protest activity … we recommend you plan ahead. As part of your plan, you should understand that this is a highly technical area of the law involving subtle fact-sensitive distinctions between lawful and unlawful conduct, but with significant ramifications from a remedial standpoint. Add to the mix the fact that the body of law governing this field is in a constant state of flux and ever-evolving, and you have the potential for a highly combustible situation. For these reasons, we encourage you to consult labor counsel before embarking on any specific directives in this area.

Workers May Be Protected By Federal LawFirst and foremost, you need to recognize that the National Labor Relations Act [NLRA] protects all workers who engage in lawful concerted activity for the purposes of mutual aid and protection. This applies to unionized and non-unionized workforces alike. Any worker who takes or seeks to initiate an action among a group of employees about work-related issues, or brings complaints about the workplace to management, is covered under the statute. Therefore, if you take adverse action against these workers for their concerted, protected activity, you could face an unfair labor practice charge. You should not discipline workers for engaging in this concerted, protected activity. In fact, the unions and worker advocates may actually be eager for you to slip up and drop the disciplinary hammer on protestors, using your actions as an example to make workers into martyrs for their cause.

Please let us know if you experience any protest activity on Thursday so we can report back to the National Restaurant Association.

The Colorado Restaurant Association has long been in support of responsible immigration reform. Foreign-born workers are critical to our industry and we support an immigration policy that includes a pathway to citizenship.

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